The allegations against Rep. Katie Porter, who has been donned a “bad boss” in anonymous posts on the Twitter and Instagram account ‘Dear White Staffers,’ are a timely reminder of the rising number of investigations involving abusive conduct in the workplace. In fact, Oppenheimer Investigations Group has seen an increase in these cases since the beginning of the COVID-19 pandemic.
Workplace investigations into abusive conduct present a unique set of challenges for an investigator. From the outset, the term “abusive conduct” can encompass a wide variety of behaviors that may not fit neatly into any set of parameters. As a starting point, one might look at the definition of “abusive conduct” set forth in an amendment (AB 2053) to California’s Fair Employment and Housing Act (FEHA), which defines abusive conduct as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” In addition, it states in pertinent part that, “A single act shall not constitute abusive conduct, unless especially severe and egregious.” This means that in most cases, the conduct must be pervasive in order to constitute abuse or bullying.
So, how does an investigator approach an allegation of abusive conduct? Typically, at intake or upon receiving a complaint, the investigator should identify the set of behaviors that are the most problematic, the frequency of those behaviors, and how widespread the behavior is. Many times, there will be allegations that the “bad boss” is an “equal opportunist” who may be engaging in this type of behavior with several employees. Therefore, to conduct a thorough and fair investigation, the investigator should speak to a representative sample of employees to determine the veracity of the allegations and whether there is a recognizable pattern of abusive behavior.
Investigators should also consider the potential impact of bias. Whether by the complainant or by the alleged “bad boss,” bias can have a notable impact on workplace dynamics. For example, consider whether the gender or race of the alleged “bad boss” played a role in the complaint or whether the boss’s behavior targeted certain individuals based on a protected characteristic. In these cases, the conduct may escalate to unlawful harassment.
In light of the significant number of abusive conduct/bullying cases OIG has investigated in recent years, we compiled a list of tips on lessons we learned along the way.
OIG Tips on Effective Abusive Conduct Investigations
- Narrow your scope: Consider identifying and limiting the scope to the most serious and recent incidents in order to avoid an unnecessarily expansive investigation.
- Quantify behavior: Consider asking interviewees to quantify frequency and severity of the alleged conduct to better grasp what occurred. For example, using a consistent 1 to 5 scale for allegations of yelling in the workplace.
- Reference policies: If the organization has an abusive conduct or code of conduct policy, the investigator should review the policy to determine what information would be the most relevant for the employer to learn about in the investigative report.
- Understand the landscape: Consider gathering evidence regarding workplace culture in order to factor in any relevant context.
A thoughtful investigation can help get to the bottom of this problematic behavior. And it’s a good idea to address the allegations promptly to avoid allowing the destructive dynamic to fester within the workplace, ultimately eroding morale and organizational culture.